In President George W. Bush's last term, Democrats filibustered 10 of his Circuit-Court nominees. This is the first time in history that appellate court nominees have been filibustered. President Bush has renominated 7 of those 10 (3 have withdrawn) and the Democrats have threatened to filibuster them again. By the Senate rules, it takes 60 votes (the "cloture" rule) to limit debate. Senator Majority Leader Bill Frist has said he will ask for a ruling that only a simple majority will be required to end debate on judicial nominees. Should Frist do what the Democrats call the "nuclear option?"

Democratic Senator Charles Schumer of New York said, "The nuclear option is aptly named because it will blow up the Senate. We don't know if Senator Frist has 51 votes, but it would be a tragedy for the Senate and for the country if he does. It would reverse almost 200 years of history and dramatically change what the Senate has always been." The first problem with this argument is that Democrats had no problem with reversing 200 years of history when they filibustered the appeals-court nominees. The second problem is that West Virginia's Democratic Senator Robert Byrd, according to Martin Gold and Dimple Gupta in the Harvard Journal of Law and Public Policy, used the "nuclear option" 4 times when he was Majority Leader. The Senate itself has imposed rules that ban the filibuster, for example "fast track" for trade bills. No history would be "reversed."

One way the Republicans could deal with the problem, other than the "nuclear option," would be to force an around-the-clock filibuster. The problem here is that those participating in the filibuster need only one person present, where those against must have a majority present to be ready to respond to a quorum call. Frist has pointed out that the health problems of some of the Senators is probably enough to prevent this option. I personally like this option because, even if it doesn't work, there would be so much media coverage that it would focus public attention on the issue.

In a paper titled "Filibusters and the Constitution," (PDF format) put out by the Federalist Society (authors: Reid Cox, Tammi Kanner, Allyson Newton, Evan Rikhye), they wrote: "Judicial filibusters uniquely threaten to weaken the power of the President in an area in which the Constitution gives him primary authority. Because the Constitution vests ‘all legislative powers herein granted' in the Congress, filibusters of legislation do not rise to the same level of constitutional concern as filibusters of judicial nominees because the latter intrude upon executive function." So the question arises, even if filibustering judicial nominees are constitutionally suspect, what's to prevent the Democrats from filibustering the "nuclear option?"

The Federalist Society paper goes on: "Whatever the merits of the argument that filibusters of judicial nominees are unconstitutional, an even stronger constitutional argument can be made against the filibustering of proposals to change the filibuster rule itself. In United States v. Ballin (1892), the Supreme Court unanimously held that even though the Constitution empowers each house of Congress to determine its rules of proceedings, ‘it may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rules and the result which is sought to be attained.' Thus, just as one Congress cannot enact a law that subsequent Congresses could not amend by majority vote, one Senate cannot enact a rule that a subsequent Senate could not amend by a majority vote. Such power would arguably offend the Constitution because it would be tantamount to amending the Constitution by a majority vote of Congress." In sum: "Constitutional law scholars all along the ideological spectrum have maintained that any use of a super-majority requirement enacted by a prior Senate to prevent the current Senate from adopting their own rules would be unconstitutional."

Assuming Frist can change the rules with a simple majority, should he? I think about the Democrats when they invented the Office of Independent Council to go after Republican Presidents. They never thought it would be used against them (remember Ken Starr?). Should the Republicans worry that the "nuclear option" will be used against them? No. Presidential nominees deserve an up or down vote in the Senate whether they are Democrats or Republicans. The Democrats need to ask themselves a question: "Would I be mad if a Republican minority filibustered my President's judicial nominees?" The answer would be "of course." So the obvious answer to the question: "Should Frist employ the "nuclear option?" is, "Of course."

Robert S. Sargent, Jr. is a senior writer for Enter Stage Right and can be reached at
rssjr@citcom.net.